N.J.S.A. 2C:2-2(b)(3) defines "recklessly" as follows:
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. . .
In short, although we defer to the Law Division judge's finding of fact, we conclude, as a matter of law, that Davis's actions, which took place over the period of a few minutes at most, did not "recklessly creat[e] a risk" of "public inconvenience, annoyance or alarm" and did not involve "tumultuous behavior."While Davis's conduct was inappropriate and intemperate, it was not criminal under N.J.S.A.2C:33-2.
